Xie v. Sklover & Co., LLC

• Decision Date: 23 May 2017
• Docket Number: Case No. 1:15–cv–02020 (CRC)
• Citation: 260 F.Supp.3d 30
• Court: U.S. District Court — District of Columbia
• Parties: Agnes XIE, Plaintiff, v. SKLOVER & COMPANY, LLC, et al., Defendants.

260 F.Supp.3d 30

Agnes XIE, Plaintiff,

v.SKLOVER & COMPANY, LLC, et al., Defendants.

Case No. 1:15–cv–02020 (CRC)

United States District Court, District of Columbia.

Signed May 23, 2017

Agnes Xie, Washington, DC, Pro Se.

Caroline E. Costle, Cary S. Greenberg, Greenberg Costle, PC, Tysons Corner, VA, Deborah Murrell Whelihan, Jordon Coyne, LLP, Fairfax, VA, Phillip R. Zuber, Sasscer, Clagett & Bucher, Upper Marlboro, MD, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

A Fannie Mae employee has a few heated workplace disputes with her superiors at the company's Washington, D.C. headquarters. Fearing termination and suspecting legal violations on the part of her employer, she hires a two-partner, New York-based employment-law firm to represent her in the matter. Those partners are New York residents and are licensed only in New York and New Jersey, but their retainer contract assures the client that they litigate pro hac vice whenever necessary. The partners never physically travel to the District of Columbia in connection with their client's dispute, but either individually or on behalf of the firm, they: send numerous letters and emails to the D.C. employer, demanding a settlement and threatening litigation; file a complaint and engage in over a dozen conference calls with the Equal Employment Opportunity Commission ("EEOC") in D.C.; and schedule an EEOC mediation with the employer, to be held in D.C.—although they ultimately decline to attend the session. Later, the client brings a malpractice action against the partners and their current law firms in a federal district court in Washington. Does that court have personal jurisdiction over the lawyer-defendants?

This Court answers that question—which derives not from a 1L issue spotter, but rather from the facts of this case—in the affirmative. Because the retainer contract contemplated and effected a "substantial connection" with this forum, Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004), the Court may exercise personal jurisdiction to hear claims arising from that contract. The Court also considers Defendants' various other arguments for dismissal.

I. Background

A. Employment Dispute and Plaintiff's Retention of Sklover & Donath, LLC

Plaintiff Agnes Xie began her employment as a Financial Economist at Fannie Mae's Washington, D.C. office in March 2010. Pl.'s Opp'n Donath Defs.' Mot. Dismiss ("Pl.'s Opp'n Donath MTD"), Ex. 4B (EEOC Charge Form), ECF No. 44–3.¹ Apparently, as early as April 2010 and for roughly the next year, Xie noticed what she believed were defects in certain of the company's economic risk models, and she brought these perceived flaws to the attention of multiple superiors. See Pl.'s Opp'n Donath MTD, Ex. 3B, ECF No. 44–1, at ¶¶ 6–15. In the meantime, she was allegedly passed over for at least one position, id. at ¶ 9, and in July 2011 she was issued a disciplinary memo, which in Xie's view was grounded in false accusations, id. at ¶ 16. Soon afterwards, Xie's health began to decline, her work attendance became sporadic, and on November 18, 2011, she was given a notice of termination.²

In July 2011, around the time she received the disciplinary memo, Xie retained the New York employment-law firm of Sklover & Donath, LLC—headed by named partners Alan Sklover and Sheree Donath—to represent her in connection with an anticipated legal dispute with Fannie Mae. Fourth Am. Compl. ¶ 7, ECF No. 20. The retainer agreement set forth a fee schedule, along with a list of "client's rights," which included the assurance that Xie would "be kept informed as to the status of [her] matter" and would be given "sufficient information to allow [her] to participate meaningfully in the development of her matter." Pl.'s Opp'n Donath MTD, Ex. 1, ECF No. 44, at 8.³ The contract also noted that, although the firm's attorneys "are admitted to practice law only in New Jersey and New York State," they "are permitted to provide advice on methods and strategies of negotiation to individuals worldwide, without limitation," and that "[w]hen we appear in courts in other states, we first gain admission on a case-by-case (called ‘pro hac vice ’ admission) basis, and work with local counsel." Id. at 3.⁴

B. Sklover & Donath, LLC's Representation of Plaintiff

Several months later, Donath sent a notice of representation letter via Federal Express and email to Fannie Mae's Associate General Counsel, addressed to the company's Legal Department at its Washington, D.C. headquarters. See Pl.'s Opp'n Donath MTD, Ex. 4A, ECF No. 44–3, at 2. In the letter, Donath noted that the law firm represented Xie "with respect to her employment with and [potential] termination from Fannie Mae"; that the firm had "concluded that Ms. Xie has considerable legal claims against Fannie Mae," including claims of retaliation and discrimination, and violations of the Family and Medical Leave Act ("FMLA"); and that, whether "by discussion or by litigation/arbitration," the claims would "by one means or another[ ] be resolved." Id. at 2–4. The following month, Donath sent a second letter to Fannie Mae Legal on behalf of Sklover & Donath, LLC, following up on the previous communication and attaching an affidavit signed by Xie. Id. at 5–21. The affidavit was titled "In Contemplation of Litigation." Id. at 7–21.

In April 2012, Donath and Sklover assisted Xie in preparing, drafting, and reviewing a complaint to be lodged with the D.C.-based EEOC and the D.C. Office of Human Rights ("DCOHR"). See Pl.'s Sur–Reply in Opp'n Donath MTD, Attachment 11, ECF No. 54–11. On April 25, 2012, Donath notarized and filed that complaint with the EEOC and DCOHR. See Pl.'s Opp'n Donath MTD, Ex. 4B, ECF No. 44–3 ; Fourth Am. Compl. ¶ 9.⁵ In mid-May, Donath sent a third letter to Fannie Mae's Legal Department, notifying it of the filing with EEOC and DCOHR and providing further updates. See Pl.'s Opp'n Donath MTD, Ex. 4A, ECF No. 44–3, at 22–24. The letter once again indicated that a resolution would be obtained "either through settlement or arbitration and/or litigation," with the choice being "entirely up to Fannie Mae." Id. at 24. At the end of the month, Fannie Mae's Associate General Counsel responded via email to the letter, stating the company's position that "it did not wrong Ms. Xie in any way" and asserting its "plans to fully defend against Ms. Xie's EEOC charge and any claims she may bring in arbitration." Pl.'s Opp'n Donath MTD, Ex. 6B, ECF No. 45.

From May through August of 2012, billing records reflect that Donath engaged in over a dozen telephone conferences with the EEOC, in addition to frequent email correspondence. See Pl.'s Sur–Reply in Opp'n Donath MTD, Attachments 12–15, ECF Nos. 54–12 to 54–15. In the middle of June, Donath learned from the EEOC that Xie's complaint was being considered for possible mediation, and she passed that information along to her client. Pl.'s Opp'n Donath MTD, Ex. 6A, ECF No. 44–4, at 2. A mediation session was confirmed for July 25, 2012 at a Washington, D.C. EEOC office, and Skover was slated to accompany Xie to the session. Id. at 2, 5. However, Sklover later apparently "declined to attend" the session. Fourth Am. Compl. ¶ 14.

It is unclear why, or even whether the mediation session actually occurred. In any event, at some point thereafter, the matter was submitted to an EEOC investigator, and judging from billing records, the case appears to have gone dormant. See Pl.'s Sur–Reply in Opp'n Donath MTD, Attachments 16–19, ECF Nos. 54–16 to 54–19. On November 19, 2013, the EEOC sent Xie a "Dismissal and Notice of Rights" form, indicating that the agency was closing her file because its investigation had been inconclusive as to whether Fannie Mae had violated any of the relevant statutes. Pl.'s Opp'n Donath MTD, Ex. 4C, ECF No. 44–3, at 29. The form also included a section entitled "Notice of Suit Rights," advising that any lawsuit arising from the EEOC charge "must be filed within 90 days of your receipt of this notice." Id. Copied on the notice were Fannie Mae and Sheree Donath, at Sklover & Donath, LLC. Id.

C. Plaintiff's Loss of Contact with the Firm and Pro Se Arbitration Proceedings

Xie alleges that, after receiving the EEOC Notice, she attempted to contact both Sklover and Donath for advice and "recommendations" and sought to make "appointments to talk about the issue," but that they "ignored" her. Fourth Am. Compl. ¶¶ 21, 24. As it turned out, Donath had taken a leave of absence from the firm beginning January 2013, and had departed permanently in March of the same year. Donath Defs.' Mot. Dismiss ("Donath MTD"), Affidavit of Sheree Donath ("Donath Aff.") ¶¶ 7–8. But Xie alleges that she was never given notice of that change. See Fourth Am. Compl. ¶ 13. As for Sklover, Xie alleges that he finally responded to her in April 2014, roughly five months after she had received the EEOC Notice and sought the firm's advice. Id. at ¶ 25. By then, due to the 90–day deadline for filing suit, it was too late to pursue any of the claims set forth in her EEOC complaint.

In October 2014, now proceeding pro se , Xie brought an arbitration action against Fannie Mae, asserting various claims of discrimination and retaliation. See Fourth Am. Compl. ¶ 26; Pl.'s Opp'n Donath MTD, Ex. 3C, ECF No. 44–2, at 4. Later, in September 2015, Xie amended her arbitration demand in order to bring a total of fifteen claims: She asserted violations of Title VII, § 1981, FMLA, the D.C. Human Rights Act ("DCHRA"), the D.C. Family and Medical Leave Act, the D.C. Wage Payment Act, and various common law causes of action. See Pl.'s Opp'n Donath MTD, Ex. 3B, ECF No. 44–1. In opinions issued in August and November 2016, on Fannie Mae's motion, the arbitrator dismissed all but three of these claims as time-barred, since they were filed after the expiration of the relevant statutory limitations period. See generally Pl.'s Opp'n Donath MTD, Ex. 3C, ECF No. 44–2.⁶

D. Plaintiff's...